Archive for November, 2009

The purpose of parliamentary law—the rules that govern legislative procedure—is to “enable an assembly, with the least possible friction, to deliberate upon questions in which it is interested, and to ascertain and express its deliberate sense or will on these questions” General Henry M. Robert, Parliamentary Law 3 (1923) (General Robert authored Robert’s Rules of Order, an influential work on parliamentary procedure which is still commonly used today.). So to prevent impassioned minorities from creating too much friction by abusing the filibuster, the Senate implemented a procedure called “cloture.”

cloture – The only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and thereby overcome a filibuster. Under the cloture rule (Rule XXII), the Senate may limit consideration of a pending matter to 30 additional hours, but only by vote of three-fifths of the full Senate, normally 60 votes.

Yesterday, the Senate voted for cloture on the debate about the government health care takeover. Even setting aside the vote-purchasing spectacle, I believe that in these circumstances cloture was inappropriate. In general, I don’t see anything wrong with a rule that allows the legislature to avoid a filibuster if it is simply an abuse of procedure designed to derail the legislative process. After all, we don’t require unanimity among our lawmakers; a majority is usually enough. But in this case cloture wasn’t used just to avoid procedural delay tactics; it was used to avoid important debate and discussion.

The Senate democrats’ draft health care bill, called the “Patient Protection and Affordable Care Act” is 2,074 pages long. If it is implemented, it will drastically change the way in which health care is provided and paid for in the United States. Low-end estimates predict its cost at close to a trillion dollars during the first decade. Furthermore, there are important questions to be resolved over which the public is deeply divided. Will it cover abortions? Will it subsidize reckless lifestyles? Will it cover non-citizens? How will the country pay for it? How will the system deal with shortages? Who will decide when a medical procedure is appropriate? Are the government’s recent recommendations for less frequent cancer testing for women just the first step in a movement to ration all medical tests? Will this plan avoid the mistakes that led to the failure of other government-run health care programs such as Medicare, Medicaid, and the Veterans’ Administration?

I am irreconcilably opposed to government involvement in health care for reasons of principle, but even those in favor must recognize that these questions need to be answered. To successfully implement a program of this size and complexity, congress would need more than a mere thirty hours to debate, plan, and evaluate. Cloture in these circumstances is foolhardy.

It’s no secret that news reporters distort facts to sell ads and push agendas, but here is a funny example. I was alerted to this by an odd discrepancy in an interview published by Fox News. The headline for the interview read, “Sen. Hatch: ‘Holy War’ Coming Over ‘Lousy’ Health Care Bill.”

Now the quotation marks in the headline led me to believe that Senator Hatch actually said the words “holy war,” but the only time the term comes up in the interview is in the following passage,

HATCH: From now. If they tried to go ahead with this bill without really allowing enough time for amendments and for chances to try and correct the bill, I think the American people are going to be outraged, and they should be.

VAN SUSTEREN: You used the term “holy war” in describing that, right?

HATCH: We’re talking about a country that is really going to be in real economic jeopardy if this bill goes through this way. And let’s just be honest. Those figures are probably low.

Notice that Senator Hatch simply ignored the reporter’s invitation to provide a quote that includes the words “holy war” in it. It seemed strange to me that the reporter would load a question like that unless there was at least some factual basis for it, so I googled the term “senator hatch ‘holy war.’” Sure enough, other news agencies were reporting the phrase as well—there were over 17,000 results. Most of the articles that cited a source for the quote referenced an article published in the L.A. Times.

The relevant portion of the L.A. Times article read, “‘It’s going to be a holy war,’ Sen. Orrin G. Hatch (R-Utah) said Wednesday evening.” (No citation for when or where this was said.)

Reporters love it when public figures say things like “holy war,” because it can be manipulated in so many different ways. Here are a few:

So I called Orrin Hatch’s D.C. office to ask if he had really used the phrase, “holy war,” and if so, what he had meant by it. I spoke with Mark Eddington who explained that Senator Hatch may have used the phrase in the halls after a hearing and that he was using the term to describe the expected intensity of the floor debate.

So there you have it, news making at its best. No wonder people are confused!

“When many organs of the press adopt the same line of conduct, their influence in the long run becomes irresistible, and public opinion, perpetually assailed from the same side, eventually yields to the attack. In the United States each separate journal exercises but little authority; but the power of the periodical press is second only to that of the people.” Alexis de Tocqueville, Democracy in America vol I ch 11 (Henry Reeve trans. 1899) (1835).

A few weeks ago, a good friend of mine recommended an article about health care reform titled “How American Health Care Killed My Father” published in the Atlantic magazine this September. Based on the title, I half expected the article to be a rant against heartless capitalism, but happily I was wrong. The article thoughtfully and honestly explores some of the real reasons why health care in America is so expensive and unresponsive to the consumer. I disagree with the author’s proposed solution, but he outlines some of the problems very well.

Separation of the judicial power from the legislative and executive powers is a necessary precondition for liberty, and it depends upon two important restraints. Restraining the legislature and executive from exercising or influencing judicial power—this is called judicial independence. And restraining the judiciary from exercising legislative power—this is called judicial deference. Both judicial independence and judicial deference are essential to the just administration of law. Sadly, neither of these restraints is properly understood or applied today.

Judicial independence is necessary to prevent politics and special interests from tainting the adjudication of individual rights, but recognition of its importance has waxed and waned. At times, “the ideal of a court of justice has been the omniscient and inexorable judgment seat of God.” Brooks Adams, The Theory of Social Revolutions 36 (1913). At other times, the idea of a judiciary that was independent from the legislature has been “treated with the utmost contempt” John Quincy Adams, I Memoirs 322 (1848) (recording sentiments expressed to him by Senator Giles of Virginia). A striking example of the fragility of judicial independence in American history was Franklin D. Roosevelt’s threats to increase the number of justices on the Supreme Court to obtain favorable rulings on New Deal legislation. Roosevelt was frustrated with the Supreme Court’s consistent decisions that his proposed legislation violated the Constitution. On Friday, January 11, 1935, then Secretary of the Interior Harold L. Ickes wrote in his diary,

The Attorney General went so far as to say that if the Court went against the Government, the number of justices should be increased at once so as to give a favorable majority. As a matter of fact, the President suggested this possibility to me during our interview on Thursday, and I told him that that is precisely what ought to be done. It wouldn’t be the first time that the Supreme Court had been increased in size to meet a temporary emergency and it certainly would be justified in this case.

Harold L. Ickes, The Secret Diary of Harold L. Ickes 274 (1954). For reasons that are disputed by historians, Justice Owen J. Roberts relented and changed his position on the constitutionality of the New Deal in a case called West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). This surrender made Roosevelt’s plan to expand the court unnecessary, and is sometimes called “the switch in time that saved the nine.” Justice Roberts insisted that he hadn’t changed his vote in response to Roosevelt’s threats, but whether or not this is true, it was clear that Roosevelt had already resolved to change the membership of the court to get the outcome he wanted. The threat to judicial independence was real.

Judicial independence is essential to the preservation of liberty because judges bear the heavy burden of standing against the will of the majority when enactment of the majority’s will would infringe upon individual rights. But the obvious follow-up question is what are the individual rights that judges should protect? Or put another way, what is to prevent judges from inventing rights and striking down legislation for political, personal, or ideological reasons? The answer is that a judge is obligated and authorized to protect only those rights recognized in the charter from which he or she receives judicial authority. This limitation prevents the judge from becoming a super legislature with a lifelong term. With this limitation, judges become as Hamilton described, having “neither force nor will, but merely judgment.” The Federalist No. 78 (Alexander Hamilton). If judges respect this limitation, both judicial independence and judicial deference are served. The judge defers to the Constitution for the rights that he or she is authorized and obligated to protect, and then acts independently of the legislature and executive in protecting those rights.

The Constitution provides two separate sources from which judges can draw information about the rights that they are obligated to protect. The more commonly recognized source is the Bill of Rights. Incidentally, it is strange that the Bill of Rights has become the primary source, because it was not part of the original Constitution and was thought superfluous by many of the founders, including as James Madison. The second source of information about the rights that judges are obligated to protect is the language that limits the role and authority of each of the political branches. This second source does not list individual rights, but it implies them by confining the authority of the executive and legislative branches. Sadly, this second source of information has been largely ignored by judges, and as a result, the legislature and the executive now act far beyond their constitutional limits. Today, judges usually refuse to give any real protection to rights that are not specifically listed in the Bill of Rights. This failure of judges to protect individual rights other than those listed in the Bill of Rights is wrongly identified as judicial deference. During the recent struggle over the nomination of Justice Sotomayor, Attorney Jeff Rowes wrote a compelling article in the Wall Street Journal highlighting this problem:

The time-honored justification for judicial deference is that when courts refuse to enforce property rights and allow economic liberties to be trampled by legislatures they are showing respect for the democratic process. But this notion is not faithful to the duty of the judiciary. The Constitution’s framers understood that legislatures are as much nests of vice as of virtue. That is why they went to such lengths to define the limits of government, set forth our rights broadly, and create an independent, co-equal branch of government to protect those rights.

Jeff Rowes, Judicial ‘Activism’ Isn’t the Issue, Wall St. J., June 6, 2009, at A13. This misunderstanding of judicial deference undermines individual liberty and misleads people about the judge’s role. True judicial deference means that unless a law violates the Constitution (either by running afoul of a provision of the Bill of Rights or by exceeding the legislature’s limits of authority) a judge will interpret and apply that law as it is written.

This confusion about judicial deference is largely due to the counterfactual and counterhistorical claim that the Constitution does not embody a particular socioeconomic philosophy. The record of the debates over the language of the Constitution, the intellectual climate of the time, the size and nature of government at the time, and the text of the Constitution all plainly show that the Constitution was enacted on a foundation of natural rights and an assumption of economic liberty. Ever since the ratification of the Constitution, however, power-hungry men and women have sought to destroy this foundation and make the Constitution infinitely flexible. Consequently, any act by the judicial branch to check the excesses of the legislature and the executive branches that is not supported by both the plain text of the Bill of Rights as well as popular feeling is branded “judicial activism.” At the same time, real judicial activism goes unnoticed as judges expand statutes beyond their plain meaning and restrict private actions that don’t fit the judges’ worldview.

Last week a majority of Maine voters chose to preserve traditional marriage. In response, the pro-gay political movement protested that their rights had been violated and published pictures and interviews of disappointed homosexual couples. One common complaint from this movement has been that traditional marriage laws are illegitimate because they are based on majority morals. In a similar vein, two weeks ago I had an extended discussion with a professor of property law—who also happens to be a devotee of law and economics—about zoning laws based on majority morals. Frequently, communities use zoning regulations to exclude bars, distilleries, strip clubs, pornography, public nudity, and other things that the community dislikes for moral reasons. This professor insisted that morality was not a legitimate justification for zoning regulations and that cities should have to justify any laws they enact on non-moral grounds.

Arguments that laws should not be based on morals are persuasive in the United States. Many of the early immigrants to the United States were driven here by religious persecution, and, consequently, the protections for religious freedom written in the First Amendment are among the strongest in the world. History has strengthened this sentiment; state action enforcing a moral code raises the specter of atrocities like the inquisition, the Salem witch trials, and the violent expulsion of the Mormons from the United States in the middle of the nineteenth century. Another complication is that individuals examining a moral code from the outside often judge its practitioners to be irrational or worse. Individuals within a moral code often judge those who don’t abide by it to be deviant or worse. An extreme example of such a clash is the long conflict between western culture and fundamentalist Islam. These sentiments against laws based on morality are misleading because at root all legitimate laws are based on moral judgments.

For many laws, particularly criminal laws, the moral judgment is obvious: murder is bad; stealing is bad; injuring others is bad; and so on. For other laws, the connection to a moral judgment is distant and only becomes evident by asking what the end goal of the law is and then asking why society ought to pursue that goal. The private reasons of legislators and voters for supporting the law are irrelevant; the moral aspect of the law is revealed through the reasons that the public accepts as legitimate arguments.

When I presented this argument in my discussion with the property law professor, he immediately disagreed. “What about,” he asked, “laws designed solely to achieve some economic benefit?” He argued that such laws were not based on morality because they were only intended to promote the production of goods (like televisions, food, cellphones, etc) that have no moral aspect at all. This argument touches on but misapplies an important point. Clearly, an object can be good but it cannot be moral. It makes sense to describe a screwdriver as good, but it is nonsense to say that it is moral. Morality implies will—a trait that screwdrivers lack. So my property law friend was partially correct to claim that the goods that a law seeks to promote may lack a moral aspect. But his argument fails because laws are not simply assertions of fact; laws constrain human action. So, a law designed to achieve an economic benefit is not simply a non-moral judgment that economic benefits are good; it also implies the moral judgment that people should act (and government should force them to act) in ways that produce economic benefits.

Recognizing that all laws are ultimately based on moral judgments has important consequences. It means that objecting to a law because it is based on morality simply doesn’t make sense for the non-anarchist. It also means experts in economics, law, and public policy are not necessarily experts on the legitimacy of laws; experts on the legitimacy of laws are those who have a clear, deep understanding of moral truth. Perhaps most important, recognizing that all laws are ultimately based on moral judgments places moral and immoral individuals on an equal footing when discussing politics.

Political movements are successful only insofar as they appeal to popular moral justifications. Honest politicians do this by explaining the moral justifications they rely on and attempting to persuade others to adopt those justifications. Dishonest politicians hide the moral implications of their political goals and instead present widely accepted but inapplicable moral values. The gay rights movement has used this latter strategy with marked success by injecting the popular moral judgment of equality before the law into the gay marriage debate. See my previous post. The fact that the decision in Maine to deny marriage licenses to gay couples was a moral judgment in no way invalidates that judgment. It simply shows that the majority still rejects homosexuality as immoral, and that it has not fallen for the equal protection ruse.

Before ending I want to clarify two possible misunderstandings that are not directly relevant but could arise from this post. The claim that laws are unavoidably tied to morality does not contradict the existence of natural law, nor does it in any way endorse moral relativism. Moral judgments can be accurate or inaccurate just like any other kind of judgment; natural law is the articulation of accurate moral judgment.